clergy, not punishing them if they hold plea in court christian of such things as be mere spiritual, that is, to wit, of penance enjoined by prelates for deadly sin, as fornication, adultery, and such like, for the which sometimes corporal penance, and sometimes pecuniary is injoined, specially if a freeman be convict of such things: Also if prelates do punish for leaving the churchyard unclosed, or for that the church is uncovered, or not conveniently decked: in which case none other penance can be injoined but pecuniary: Item, if a parson demand of his parishioners oblations or tithes due and accustomed; or if any parson do sue against another parson for tithes greater or smaller, so that the fourth part of the value of the benefice be not demanded: item, if a parson demand mortuaries, in places where a mortuary hath been used to be given: Item, if a prelate of a church, or a patron, demand of a parson a pension due to him; all such demands are to be made in a spiritual court. And for laying violent hands on a clerk, and in cause of defamation, it hath been granted already, that it shall be tried in a spiritual court, when money is not demanded, but a thing done for punishment of sin; and likewise for breaking an oath: In all cases afore rehearsed, the spiritual judge shall have power to take knowledge, notwithstanding the king's prohibition.

In all matters concerning the bishop of Norwich, and his clergy] The bishop of Norwich is here put only for example; but it extendeth to all the bishops within this realm. 2 Inst. 487. The said act having been made on petition of the bishop of Norwich; [219] as, generally, acts of parliament in ancient times were founded on antecedent petitions.

Of such things as be mere spiritual] Not having any mixture of the temporalties; as heresy, schisins, holy orders, and the like. 2 Inst. 488.

So that the fourth part of the value of the benefice be not demanded] So as at this day, in case where one parson of the presentation of one patron demands tithes against another parson of the present

hibition to stay the consistory court of London from proceeding in a suit where party cited as within the jurisdiction of an ecclesiastical court, but resident in another jurisdiction, had appeared and submitted to the suit, was refused, per Vice Ch. 4 Aug. 1821. 1 Add. Rep. 19. (a) Whether or not the spiritual court has jurisdiction over a cause depends not on the parties being ecclesiastical persons, but on the nature of the question in dispute: Thus where the right to tithes is admitted, and a question arises between rector and vicar to which of them they are payable, that is a question triable by the spiritual court, and is no subject of prohibition. Cheeseman v. Heby, Willes, 680. Drake v. Taylor, 1 Stra. 87. acc. See Com. Dig. tit. Prohibition (G. 6.)

Not for

by the canon law.

ation of another patron in court christian, amounting to a fourth part of the value of the benefice; the right of tithes at this day is to be tried at the common law. 2 Inst. 491.

2. It hath been holden, that if the spiritual court do proceed proceeding wholly on their own canons, they shall not be at all controuled by the common law (unless they act in derogation from it, as by questioning a matter not triable before them, as the bounds of a parish, or the like); for they shall be presumed to be the best judges of their own laws: and therefore in such case, if a person is aggrieved, his proper remedy is not by prohibition, but by appeal, 1 Haw. 4. 13. Ayt. Par. 171, 438. (8)

Not for

trying temporal incidents.

3. In case the principal matter belong to the cognizance of the spiritual court, all matters incidental (though otherwise of a temporal nature) are also cognizable there; and no prohibition (See ante, will lie, provided they proceed in the trial of such temporal inciCourts,11. dent, according to the rules of the temporal law.

Thus in Shotter v. Friend, H. 1 W. An executor being sued for a legacy in the spiritual court, pleaded payment, and offered to prove it by one witness; which the judge refused, and gave sentence against him. Upon this matter suggested, a prohibition was moved for. And by the court; 1. Where the ecclesiastical court proceedeth in a matter merely spiritual, if they proceed in their own manner, though it is different from the common law, no prohibition lieth; as in probate of wills, there if they refuse one witness, no prohibition lieth. 2. Where they have cognizance of the original matter, and an incident happens which is of temporal cognizance, or triable by the common law; they shall try the incident, but must try it as the common law would: thus in a suit for tithes, or for a legacy, if the defendant pleads a release or payment; or in a suit to prove a will, if the defendant [220] plead a revocation. So in the case at bar; they shall try the matter of payment or no payment, but then they must admit such proof as the common law would, otherwise they reject the cause themselves, and ought to be prohibited. 3. A bare suggestion, that the defendant hath but one witness, and that they take exception to his credit and reputation, is no cause of prohibition; for if they admit the proof of one witness, whether he be a credible witness or not they shall judge, and the party hath no remedy but by appeal. 2 Salk. 547. Ld. Raym. 220. (9)

Not for a temporal

4. A temporal loss, ensuing upon a spiritual sentence, is not of itself cause of prohibition. So it was adjudged in the 42 & 43

(8) Com. Dig. tit. Prohibition (G. 22.). A prohibition does not lie to the spiritual court for proceeding contrary to the canon law, Bishop of St. David's v. Lucy, 1 Salk. 134. 1 Raym. 447. 539.

(9) See 3 Mod. 283. S. C. ante Evidence, 1. and Com. Dig. tit. Prohibition (G. 23.)

tial loss.

Eliz. in the case of Baker and Rogers (Cro. Eliz. 789), where the conseqnendeprivation was for simony; on which occasion the reasoning of the court was thus: Although it was said, that in the spiritual court they ought not to have intermeddled to divest the freehold, which is in the incumbent after induction; true it is, they should not meddle to alter the freehold, but they meddled only with the manner of obtaining his presentment, which by consequence divested the freehold from him, by the dissolution of his estate, when his admission and institution is avoided. In like manner, where an incumbent (Roberts v. Pain, 3 Mod. 67.) was libelled against in the arches, for not being twenty-three years of age when made deacon, nor twenty-four when made priest, and prayed a prohibition, because a temporal loss (namely, deprivation) might follow; the court denied the prohibition, and compared this case to that of a drunkard, or ill liver, who are usually punished in the ecclesiastical courts, though a temporal loss may ensue; and if prohibitions should be granted in all cases where a temporal loss might ensue, those courts would have little or nothing to do. Gibs. 1028.

ters mixt

5. M. 1 Ann. Galizard and Rigault. There was an indict- For temment for assaulting, beating, wounding, and endeavouring to poral matravish the wife of B. upon which the party was convicted; and with spiri afterwards the husband brought an action of trespass, for the tual. same cause; and now the party being also libelled against in the spiritual court for the same fact, namely, for soliciting her chastity, moved for a prohibition to the proceedings in the spiritual court. And it was urged for the jurisdiction of the spiritual court, that they may punish for the solicitation and incontinence, and that this suit was for the health of the soul, the others for fine and damages. But by the court a prohibition was granted; for it being an attempt and solicitation to incontinence, coupled [221] with force and violence, it doth by reason of the force, which is temporal, become a temporal crime in toto, as if one say, thou art a whore and a thief, or thou keepest a bawdy house, which are temporal matters, the party shall not proceed in the spiritual court so if it be said of a woman that she is a bawd only, and not that she keeps a bawdy house: but Holt chief justice said, if one commit adultery, and the husband bring assault and battery, this shall not hinder the spiritual court, for it is a criminal proceeding there, and no indictment lies at the common law for adultery. 2 Salk. 552.

But if a man libel for two distinct things, the one of which is of ecclesiastical cognizance, and the other not; a prohibition shall be granted as to that which is of temporal cognizance, and they of the court christian shall proceed for the other. Pense v. Prouse. Ld. Raym. 59. (1)

(1) But not after sentence, comm. semb. 2 T. R. 473. Carslake v.

On trial of customs.

6. H. 10 W. The Churchwardens against The rector of Market Bosworth. The churchwardens' libel against the rector, that there hath been time out of mind, and is, a chapel of ease within the same parish; and that the rector of the said parish for time out of mind hath repaired and ought to repair the chancel of the said chapel; and that the chancel being out of repair, the defendant being rector hath not repaired it. The rector in the said court denied the custom. And a decree was made for the rector that there was no such custom, and costs were taxed there for the said rector. The churchwardens moved for a prohibition; and it was argued for the prohibition, that it ought to be granted, because it appears that the libel is upon a custom, which the defendant hath denied; and it may be the question was in the spiritual court, custom or not, which is not triable there, but at the common law; and then this appearing upon the libel, that the court hath not jurisdiction, a prohibition may be granted after sentence. But all the court held the contrary. For by Holt chief justice; The reason for which the spiritual court ought not to try customs is, because they have different notions of customs, as to the time which creates them, from those that the common law hath: For in some cases the usage of ten years, in some twenty, in some thirty years, make a custom in the spiritual court; whereas by the common law it must be for time immemorial. (2) And therefore since there is so much difference between the laws, the common law will not permit that court to adjudge upon customs, by which in many cases the inheritances [222] of persons may be bound. But in this case, that reason fails: for the spiritual court is so far from adjudging that there is any such custom which the common law allows, that they have adjudged that there hath not been any custom allowed by their law, which allows a less time than the common law to makę a custom. And the plaintiffs having grounded their libel upon a custom which was well grounded if the custom had not been denied (for libels there may be upon customs), but the custom being denied and found no custom, it is not reason to prohibit the court in executing their sentence against the plaintiffs. For the design of a motion for a prohibition, is only to excuse the plaintiffs from costs. And there is no reason but that they ought

Mapledoram, infra. Thus in Gardner v. Parker, 4 T. Rep. 351. where the suit was for breaking open a chest in a church and taking away the title deeds to the advowson, a prohibition was granted; for this is distinguishable from Welcome v. Lake (supra, Church, VIII. 24.) where the bells being the goods of the church were in the custody of the churchwardens, who libelled for them, but here only trespass or trover could be maintained.

(2)See Anon. 1 Vent. Rep. 274. S. P.

to pay them; since it appears, that they have vexed the defendant without cause. And therefore a prohibition was denied. Ld. Raym. 435. (3)

T. 12 W. Jones and Stone. David Jones, the vicar of N. was libelled against in the spiritual court, for that by custom time out of mind, the vicars of N. had by themselves or others, said and performed divine service in the chapel of Chawbury, for which there was such a recompence, and that he neglected. The defendant came for a prohibition, and without traversing this custom, suggested that all customs were triable at common law. And it was urged, that it was enough for a prohibition, that a custom appeared to charge the vicar with a duty, for which he was not liable of common right. But by Holt chief justice: A parson may be bound to an ecclesiastical duty by custom, and when he is bound by custom, the spiritual court may punish him if he neglects that duty; the custom might have a reasonable commencement by composition in the spiritual court, and begin by an ecclesiastical act; and a bare prescription only is not a sufficient ground for a prohibition, unless it concerns a layman; whereas here it is an ecclesiastical right, an ecclesiastical person, and an ecclesiastical duty, and the prescription not denied. 2 Salk. 550. 1 Lord Raym. 578.

[Prohibition on trial of a modus in tithe suits. See Tithes, IV. 13.]

7. When the issue of a matter depending in the spiritual court, is determined or influenced by any statute, a prohibition lieth. The reason is, because the temporal judges have the interpretation of all statutes or acts of parliament, whether they concern temporal matters or spiritual.

In some of the books there is an intimation, that not only all statutes whatever are to be interpreted by the temporal courts; but also that when a statute is made, giving remedy in a matter of ecclesiastical cognizance, the very making of such statute doth ipso facto take the right of jurisdiction from the spiritual court, and transfer it to the temporal; if there is not a special saving in the act, to preserve the spiritual jurisdiction. But to this the rule laid down by lord Coke, (which is also generally followed by the books), is a full answer;- An act of parliament being in the affirmative doth not abrogate or take away the jurisdiction ecclesiastical, unless words in the negative be added, as and not otherwise, or in no other manner or form, or to the like effect. Gibs.

1028.

[On trial of a modus in tithe suits.]

On the construction of liament.

acts of par

[223]

sal of a copy

8. T. 2 An. By Holt chief justice: It was formerly held by On a refuall the judges of England, that when there was a proceeding ex officio in the ecclesiastical court, they were not bound to give

the

of the

libel.